Citation Nr: 21009264 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 14-23 696 DATE: February 22, 2021 ORDER Service connection for hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss preexisted service and was not aggravated in service. CONCLUSION OF LAW The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1111, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from March 1970 through July 1970. He had several other periods of ACDUTRA between July 1970 and August 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision. In April 2018, the Board remanded the matter for outstanding private treatment records and a VA examination and medical opinion. The Board finds that there was substantial compliance with the remand directives, and further remand is unnecessary. The Veteran seeks service connection for his bilateral hearing loss. His service treatment records are associated with the claims file and appear to be complete. He underwent an entrance audiological evaluation in January 1970, which shows bilateral hearing loss for VA compensation purposes at 4000 Hz. His entrance report also notes “minimal high frequency hearing loss, bilateral.” Thus, the Board finds that bilateral hearing loss was noted at entrance into service. At the time of the service entrance examination, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. See 38 U.S.C. § 1111. Where a disorder is noted at service entrance, 38 U.S.C. § 1153 applies and service connection is warranted only when the preexisting disorder was aggravated in service. See 38 U.S.C. § 1153; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In such a case, the burden falls on the Veteran to establish aggravation. See Wagner, 370 F.3d at 1096. The Board finds that the evidence does not show that the Veteran’s bilateral hearing disorder was aggravated in service. In making this determination, the Board considered service records, lay statements, and post-service medical records. While the Veteran’s service treatment records do not contain an audiological evaluation after entrance, the record does contain annual reports of medical history completed by the Veteran. Importantly, he explicitly denied ear trouble and hearing loss in May 1971 and November 1972. In the November 1974 and November 1975 reports, he crossed out all symptoms and denied experiencing significant illness or injury since his last examination. Thus, the Veteran’s statements in service contradict his current claim that his hearing loss worsened in service. Further, the Veteran’s post-service medical records do not support his claim. The evidence shows that he first sought treatment for worsened hearing loss in December 2013, more than 30 years after he left service, and the Veteran has not contended that he was treated for worsened hearing loss prior to that time. Moreover, a VA audiologist issued a negative medical opinion in August 2019. The examiner concluded that the Veteran’s pre-existing hearing loss was not aggravated beyond normal progression in military service. The examiner based this conclusion on the Veteran’s service records and statements made in service, which showed hearing loss at entrance and no complaints of worsened hearing loss on his reports of medical history. The Board finds that the opinion is adequate and probative because the examiner considered the relevant evidence and provided a rationale. The Board considered the Veteran’s contention that his hearing loss worsened in service but finds that this contention is contradicted by his reports of medical history, which show that he repeatedly denied ear trouble and hearing loss in service. Notably, the Veteran did not issue blanket denials for all of his reports of medical history; in 1971 and 1972, he reported swollen joints, foot trouble, and a painful or trick shoulder or elbow, among other conditions. Thus, the Board can assume that if the Veteran experienced hearing issues in service, he would have documented them. Accordingly, the Board does not find that the Veteran’s contention his hearing loss worsened in service is credible or probative. To the extent the August 2019 VA examiner did not consider the Veteran’s lay statements that his hearing loss worsened in service, the Board finds that any failure to consider these statements is irrelevant as they are not credible, in light of the inconsistency between his statements and the more contemporaneous service records, including the ones for the first few years after his initial ACDUTRA. The Board also considered the positive private medical opinions submitted in December 2013 and March 2020 but finds that they are not probative because the audiologist did not comment on the Veteran’s preexisting hearing loss nor demonstrate that it was aggravated in service. Finally, the Board considered the arguments made by the Veteran’s representative in February 2021 but finds that they are not persuasive. The representative argued that the VA examiner’s opinion was not credible because he stated, “test findings revealed no change in hearing levels,” even though the Veteran did not undergo examinations after entrance. While the examiner incorrectly stated that “test results revealed no change in hearing levels” in the evidence section, the examiner corrected this in the rationale sections, where he referenced the 1972 report of medical history and stated, “no change in hearing levels noted.” Notably, the Veteran denied ear problems and hearing loss on that report of medical history. Thus, it is not incorrect for the examiner to state that “no change in hearing levels [were] noted.” The examiner further stated that “tinnitus was not reported.” It is clear that the examiner understood the document was completed by the Veteran. The Board thus finds that the initial misstatement does not undermine the opinion’s credibility. The Veteran’s representative further argued that the report of medical history is “merely a pencil whipping.” The Board does not agree with this characterization of the Veteran’s reports of medical history. The Veteran denied ear trouble and hearing loss individually in 1971 and 1972 while documenting the existence of other conditions, including swollen joints and foot trouble. Thus, the Board can reasonably assume that he would have also documented hearing issues if he experienced such symptoms, as he took the time to carefully complete the report and document the issues he was having at those times. The Veteran’s representative also argued that medical literature supports delayed manifestation of hearing loss. While this may be true, the evidence in this case does not support that the Veteran’s pre-existing hearing loss was aggravated in service. Accordingly, service connection is not warranted for bilateral hearing loss, and the claim is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lavan, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.